The next day riding the train back into the city I was attempting to do work but couldn’t concentrate. I was irritated with Louise. I kept thinking about what to say to her. The more I kept thinking about it, the more angry I became. First I thought that I would just tell her to stop the micromanagement. Maybe I wasn’t the perfect client. Maybe I smiled once in a while or nodded my head. So what? Maybe I second-guess some of their decisions. I second-guess everyone – even myself. Yeah, I know, you have “experience.” Experience is the ability to make the same mistakes over and over again with greater and greater confidence. I like it when people question me. I need a reality check once in awhile.
Wait a minute. I’m the client. Good attorneys adapt to the circumstances. So practice. I had to stop. I was getting myself irritated to the point that I thought about calling the insurance company and complaining about her. We’ll see how things go today.
Was sitting in court when Louise walked in. You could see that she had something to tell everyone. She sat down and started laughing because she yelled at her daughter after she got home the previous evening. Guess I’m not the only one Louise takes things out on. She was laughing because her daughter was only five years old and when she began crying she suddenly blurted out “THAT was unexpected.” Apparently not something that Louise would expect from a 5 year old. Louise looked disheveled. Either this trial is getting to her or something else is wrong.
Before the testimony started, I whispered something to the doc sitting next to me. Louise reached over and wrote the word “STOP” on my pad. I scribbled a box around the word “STOP” and took notes on the rest of the paper. By the end of the morning, all that was visible as a bunch of notes with a big square and the word STOP in the middle. I saw her look over at my pad and shake her head. She ignored me the rest of the day. Good.
Today I got the chance to sit back and watch how the jury views a defendant. It was my codefendant’s turn to finally get up on the stand and tell his story. He was ner-vous. Kept tapping his fingers on the desk and looking around the room like he wanted to crawl out of his skin. He said that yesterday while I was testifying, he knew all of the answers to the questions as each attorney was asking them. He practiced last night with his attorney and said he felt ready. I don’t think that he was quite as confident on the inside.
They called his name. One of Vinny’s pieces of advice didn’t hold true. Nobody watched him walk up to the stand. Vinny recommended that witnesses “stride confidently up to the stand.” I can see not slouching, but strutting? Nah. Nobody paid much attention. Maybe the jurors weren’t interested. Maybe they didn’t like him. All I noticed was that they weren’t watching.
When he first started testifying, I could see what everyone means about speaking up. I could barely hear him. For some reason, the attorneys voices seemed to carry well, but it seemed as if the person on the stand was talking through a pillow. I made a hand gesture for him to speak up. Louise scowled at me.
The Grinch started in questioning him as an “adverse witness.” This doc didn’t get the opportunity to “ease into” the questions by first discussing his background and his educational history. The first question was “you’re licensed to practice in this state, aren’t you?” On the second question, the Grinch opened up the barbecue pit and started grilling him.
It was interesting to watch the Grinch avoid subjects that might have shown the jury how this doc was not involved with certain aspects of the patient’s care. Of course, the Grinch didn’t say anything to me about the ambulance report, but that was one of the first things that he brought up with this doc. Yesterday the doc told me that he sat back and watched the jury get angry while the Grinch was questioning me. I found myself getting angry listening to this attorney grill the doc. The hospital representative didn’t have as much “bling” on after the first couple of days at trial. Must have finished her novel, too. She was actually listening to what was going on. Even she seemed ticked off. Have to focus on the poker face.
Many jurors were taking notes on during the doc’s testimony. To me, it seemed like a good thing because it showed that the jury was assimilating new information. However, several jurors were sitting there with their arms folded — almost as if they had heard enough.
This doc fell for the “Wouldn’t you agree” trap a couple of times. The Grinch got him into a habit of saying “yes” to questions, then threw in a couple of curve balls and got the doc to agree with them. I kept wanting to hold up a sign saying “LISTEN TO THE QUESTIONS.”
“You knew that this condition was deadly, didn’t you?”
“You knew that this condition could lead to sepsis, didn’t you?”
“You knew the signs and symptoms of this condition, didn’t you?”
“And despite knowing all this, you failed to call surgery right away when this man’s life was on the line, didn’t you?”
The Grinch would also jump around cherry picking different “facts” from different sources at different times to try to make his case look good.
“You should have known that…,”
“Did you see in the chart how…,”
“Would you agree with other experts who have testified to…,”
“Dr. X’s note shows that ….”
He never allowed the doc to testify about a note or document in its entirety. By having the doc read the notes into the testimony, he was essentially replacing the doc’s testimony with what was written in the notes.
One of the other things the Grinch kept doing was mixing up the timeline. Time was a crucial component of both sides of the case. The Grinch kept jumping back and forth with the facts so that there was confusion as to the exact timeline. He just kept throwing out snippets of information and saying “and you didn’t call a surgeon in then, either, did you?”
During critical points, the Grinch would take an indignant tone and say “Do you mean to tell the jury that …?
The doc remained calm and simply said “yes.”
Quite effective.
For some reason, the judge hates the doc’s attorney and he doesn’t care for the hospital attorney much, either. Any objections the doc’s attorney makes are “overruled”. The Grinch apparently caught on to the judge’s feelings and got a second wind regarding the hospital’s liability. He started making more and more daring statements and was getting away with them. When the doc’s attorney got up and started asking questions, the Grinch would object and the judge would usually sustain the objections. It was obvious that the doc’s attorney was getting frustrated. Note to self: Don’t piss off judges.
The defense attorneys had a huddle. They decided to try to work their way around the judge’s roadblock by letting Vinny do most of the redirect examination. The judge seemed to like Vinny. The plan worked. Vinny made short work of all the silly assertions the Grinch had been making.
Never really watched the judge before now. He tended to lean back in his chair and stare up at the ceiling a lot. In fact, he was in that position most of the day — at least today, anyway. I could tell that he was daydreaming at times, because when there was an objection, he would stop proceedings and ask the court reporter to read back the testimony before making his ruling. He pulled this maneuver multiple times during the doc’s testimony. The judge was probably thinking about a million other than what was going on at trial.
All of a sudden, the judge sat upright in his chair. In mid-question, he announced to the court that everyone was going to take a “comfort break.” Ha! I stood up this time. Louise didn’t seem to care. The jurors went back into the jury room and the judge disappeared back into his chambers. He either needed some Pepto-Bismol or he forgot his anniversary and needed to have flowers delivered.
The doc finished his testimony with little difficulty. When he came down off the stand and sat back down next to me, the first words out of his mouth were “Those were the two most difficult hours of my life. Look at my hands. They are sweating. Somebody give me something to wipe them on.” That “something” ended up being his pant legs. Overall he did very good. Gave up a couple of points, but overall came off as credible, and it appeared that the jury liked him.
I looked in the public seats and noticed that a representative from our insurance company was watching the testimony. She wasn’t there yesterday. I went over and said hello. She said she was sorry she missed my testimony the day before but that everyone was going through several new cases back at the office. I wasn’t sure why she was in court that day. The other doc was a resident at the time and was insured by the hospital. Did she want to watch this doc’s testimony? Did she want to watch me? Was she checking up on Vinny? Didn’t matter. She said that she was happy with how the testimony went today and how things were going in general. So was I.
Ended the day at lunch. Only one more witness tomorrow and that is the end of the trial. Jury deliberations start next week. Hallelujah.
Louise ran out of the room right after court was dismissed. I yelled to her to ask if everything was alright. I’m sure she heard me, but she didn’t even look back. Vinny just waved at her and didn’t say anything.
Overheard Hitch talking about problems he was having with his hip replacement and how he had to go to the hospital a couple of days ago. Wondered how many docs who had been sued would remember him from court. Could imagine someone yelling down the hospital halls the way that he likes to yell in court.
“No, nurse, we need that high colonic enema in Hitchcock’s room … 728 B! And bring Surgilube! A whole lot of it!”
“By having the doc read the notes into the testimony, he was essentially replacing the doc’s testimony with what was written in the notes.”
Terribly frustrating to every party, but there’s no other way to do it under the rules of evidence. Lawyer can’t make speeches except the beginning and end, and can’t direct their own witnesses to specific issues they want to highlight.
So you end up with each side make the other side’s witnesses read the record.
Great post!
“Experience is the ability to make the same mistakes over and over again with greater and greater confidence.” I like that .. also funny.
I am identifying with this series in some ways.
It’s understandable how you were feeling BOXED in/STOPPED.
How in the world did you enjoy life knowing this sham was looming over your head for 6 years? I guess you just have to compartmentalize it.. like we do with a lot of things.
“By having the doc read the notes into the testimony, he was essentially replacing the doc’s testimony with what was written in the notes.”
Even better: When the civil jury (car accident) I was on was sent to the jury room for deliberations, the bailiff walked in and dropped a manila folder with about a half-inch of paper in it on our table. Since the jury had just elected me foreman, I picked it up and started looking through it, I found it was the plaintiff’s medical record. No one had covered it at all during the trial — the plaintiff was suing another driver claiming his carpal tunnel syndrome was caused by an accident two years ago, but no doctor testified, and the neither the plaintiff nor his lawyer presented anything from the file in court. They just dumped it in our laps and expected us to figure out what to do with it. One copy for six people.
Our first vote was to agree we would never hire the plaintiff’s attorney for anything, based on his courtroom performance, not even to mow our grass. However, we also agreed we didn’t want to penalize the poor plaintiff for hiring an idiot for a lawyer, so we took about an hour and took turns slogging thru the record. Have you ever tried to make sense of your own medical record, if you don’t have medical training? Of course it did little to help him, and wasted our time.
We were not much impressed with the legal system at that point…
Don’t see how plaintiff could have gotten carpal tunnel from a car accident, unless s/he broke a wrist. An orthopod told me that is the primary cause of CTS, with repetitive strain injury being second.
Wonder how many attorneys plaintiff shopped for until finding one who would take such a lame case.
Disclaimer: IANAD, but I’ve had CTS.)
Was the medical record you reviewed formally introduced in evidence or not? Just asking …
If he reviewed it then it had to be. Often the parties stipulate to the admissibility of the entire record pretrial. With all references to insurance removed of course.
I found this part infuriating:
“You knew that this condition was deadly, didn’t you?”
“You knew that this condition could lead to sepsis, didn’t you?”
“You knew the signs and symptoms of this condition, didn’t you?”
“And despite knowing all this, you failed to call surgery right away when this man’s life was on the line, didn’t you?”
Such a distortion. Such a disgrace.
Yes, how disgraceful that people with a different view on things don’t ask exactly the questions you want them to ask!! Oh, the humanity!!!
If only your own lawyer could let you explain it the way you want. Wait, they do? What!?!?! How unfair!!!!
Asking pointed questions in such a way that honest answers will or would impeach the witness is one thing. Asking a sequence of questions so as to minimize the chance of the witness actually thinking through the final question is somewhere between a cheap carnival trick and outright fraud.
That it is considered acceptable practice in the courtroom is a disgrace. Now it may be that this sequence of questions isn’t the best example of that. It seems more to rely on an implicit assumptions that the signs of sepsis were clearly presented and that the final diagnoses was the only possible reason for this sepsis.
However, the underlying motivation for the line of questioning still seems to be logical fallacy rather than rational debate and that does bother me.
Matt,that is the only reason you always give. Stop giving that ‘people with a different view’ BS. Should the justice system be about right or wrong, or should it be about people with a different view? The lawyer should state ALL the IMPORTANT facts and show how that makes someone innocent or guilty, instead of presenting ONLY the facts that favors their case. Of course by doing that, the lawyer will fail miserably.
Yepp, the problem is that a lawyer is deliberately creating/using a logical fallacy.
That’s stupid and despicable.
“Stop giving that ‘people with a different view’ BS. Should the justice system be about right or wrong, or should it be about people with a different view?”
A civil trial is by its very nature about people with a different view. It’s a dispute between two people over a set of facts or the value of a breach by one or the other. Civil cases get to jury trial for one of two reasons – a fundamental disagreement on the facts, or a dispute about the value of damages.
You say “right and wrong” as if these are objective truths that we can go back in a time machine and determine. They’re not. We may both think we have the right of way at an intersection, and both honestly believe we’re right. Have you never had an honest disagreement with someone? Where you both simply believe your interpretation of the facts was correct no matter what the other says? Of course you have. We all have.
You’re reading this case and are up in arms because you’re hearing ONE side of the story. Were you to read the widow’s you might have come to an entirely different conclusion. That’s why we have the trial, because then we get to hear BOTH sides interpretation in the best light they can show. Until we get a time machine working, there’s not much else we can do.
“The lawyer should state ALL the IMPORTANT facts and show how that makes someone innocent or guilty, instead of presenting ONLY the facts that favors their case. Of course by doing that, the lawyer will fail miserably.”
Your last sentence is a silly statement. A lawsuit by its nature will have two sides, so one will always win. But if you think we need a system where one person decides what are the important facts for everyone, rather than have both sides lay out the evidence they think is important, then maybe one day we’ll get that system. I can respect that some people think that’s the better way to do it, I just disagree.
Judge: Are you trying to show contempt for this court?
Mae West: No, I’m doing my best to hide it.
Sorry, had to be said.
“But if you think we need a system where one person decides what are the important facts for everyone, rather than have both sides lay out the evidence they think is important, then maybe one day we’ll get that system.”
That is my problem exactly. Both sides laying out ONLY the evidence they think is important. Regardless of who is right or wrong, if I have a good lawyer that knows how to highlight the evidences that favor me, I’m bound to win. Same way OJ and a lot of celebrities walk free. Not that they were guilty or anything.
When both sides show only evidence supporting their story, who determines who is tell more or less of the truth? The jury, right? And they don’t have a truth or lie meter to help them decide, the lawyer helps convince them. And if your lawyer does a bad job of that…..
“You’re reading this case and are up in arms because you’re hearing ONE side of the story. Were you to read the widow’s you might have come to an entirely different conclusion.”
I don’t necessarily think so. The argument here is that Dr. WhiteCoat should have called for a surgical consult early. What will the widow say, that will make me think she knows better than an Emergency Physician on when to call for a surgical consult??
The widow would have told you about the case from her perspective. Or maybe if you’d heard it from the first expert WC hired. The one who thought he was negligent. The point is if you only learn about an event from one person you’re only getting their particular take. Look at WC and shadowfaxs discussion about the health reform bill. Same bill but two very different takes. Do you feel like you know more about it from reading both as opposed to just one?
You’re right the quality of lawyer can make a difference. If for no other reason than a good lawyer will do a better job laying out their case. Presentation in any debate matters. It’s not
necessarily dispositive but it can’t hurt. But that assumes a close case too.
As for OJ personally I think that jury was making a political statement. However I wouldn’t read too much into that as it is one case out of hundreds of thousands of criminal cases annually. Cochran didn’t get acquittals every time.
Like I said though if you think justice is better served by having one person gather all the facts and pronounce judgment I can respect that even if I don’t agree.
Ok. We agree on a lot of things.
Just to be clear, I DO NOT think justice is better served by one person gathering all the facts and pronouncing judgment.
Ok. One question Matt. I go for a surgery and the doctor makes an error, and I suffer for that. I sue because I believe I am entitled to some settlement. Now on the other hand, someone else was wrongfully accused of whatever. The case was close but he lost because the lawyer did not present the case well. Can that person sue the lawyer?
Any decision that was made based on CURRENT knowledge which ended up being the wrong decision AFTER additional knowledge was gained could be distorted this way.
It is a shame someone would do this.
It is a shame you can pretend it is acceptable.
Based on this story everyone should just be sent straight to surgery when they walk in the ED. I went to the ED once. Out of this world stomach pain – as in I fell to the ground and couldn’t walk. Turns out it was gas. I’m glad some doc didn’t cut me open the instant I stumbled through the door. He stuck his finger up my butt, did a few x-rays, and gave me some gas-x. Based on this lawyer I probably should have been operated on.
I’m impressed with several things about this story (the way you’re humanizing an experience most of us can just sort of scare ourselves with in the abstract), but at the moment it’s the writing I’m especially liking. Louise has really evolved as a character over the course of these episodes, and suddenly I want to know a lot more about her. How come she’s so weird to WhiteCoat? What’s her deal? Will it wind up being important to one of the central themes of the story? …questions like that. Which is what happens when the writer is good at writing. So, nice job.
She sounds like she needs it really badly. WC should have offered. To help her regain her equilibrium. She probably would have answered by a deeply gouged STOP IT in her legal pad.
I agree with Feb. I want to know why she was disheveled. Something wrong in her personal life?
I also appreciate that despite the horrendous challenge it was for you… you still had the ability to look outside yourself and feel concern for another…even when they weren’t on your favorite person’s list.
I’ve became aware of your blog via KevinMD, and as a fellow physician I not only find your story about malpractice suit interesting, but I sympathize with you and hope it works out well. Also, to me it really emphasizes that the malpractice system in this country is wrong, does nothing to help any injured party, and hurts the practice of medicine as nothing really good comes out of this. It is easy to see how a physician can change their practice after a suit not for the good, but to cover their assess.
I expect the victims that had to file suit in order to get the provider to take responsibility and can now afford to pay their doctors for their needed care as well as support their families since they can’t work would disagree with you about whether it was a help.
But if you can think of a way to get providers and their insurers to pay quicker under a different system I’d love to hear it.
The resident got an enriched educational experience, in the form of a lawsuit and testimony. As everyone else knows, lawsuits are part of doing business. If a medical group makes $5 million a year, they may have 4 lawsuits. If a welding business makes $5 million a year, they will have 400 lawsuits permanently. Walmart has 10,000 lawsuits permanently. Almost all are phony, pretextual claims so that land pirates can jack and plunder productive entities.
I suggest a course in med school. Defending Clinical Care. In it, the resident not only learns the management of these lawsuits, but also the counterstrike methodology to seek the personal destruction of plaintiff lawyers, plaintiff experts, plaintiffs and judges. These are pitiless enemies of clinical care and must be legally destroyed. Use the legal system to drive them out. Make life so obnoxious, unbearable, and dangerous, they leave the state in fear. To deter.
i know a lawyer who worked for a firm defending walmart. walmart should publish the stories of how people sue them – unreal.
trip and fall accidents with video footage of the person the whole time they are in the store – not once falling.
shop lifters that were caught and apprehended by the police – i can’t even remember what their claim against walmart was.
the things he defended were so idiotic a lot of people wouldn’t even believe him.
i’m sure some s cum bag of a lawyer would be able to not feel immoral in saying some bs line like: “there are two sides to every story” or something with the words “constitutional right”.
i hate walmart as much as the next NPR listening, non gun carrying obama voter – but damn – the lawsuits i saw against walmart made me realize the system is messed up.
Before you get yourself in a frenzy about the injustice done to WalMart remember this is the same company that was sanctioned millions for failing to produce discovery about their own safety studies in a case involving a parking lot rape.
No doubt they get sued unjustly but they’re no litigation virgin trying to do the right thing. They have a history of not paying claims regardless of legitimacy as well. You sue them regardless of the merits of the claim you will have a battle on your hands.
If the witness mistakenly answers a question after hours on hours of prep perhaps it wasn’t a mistake. Even if it was though their own attorney gets a chance to allow them to correct it on redirect. A witness always gets the chance to explain themselves.
If the witness believes the answer requires them to assume certain things not in evidence their attorney cam object or if they are false assumptions the witness can say so and explain later.
No one is ever going to like the way the opposition frames their position and questions in any kind of debate. In or out of the courtroom.
Without the full transcript we have no idea what actually happened during the cross although we can be sure that the opposing party did not like it.
Matt: I urge all defendants to demand or have their personal lawyer malpractice lawyer demand that the insurance defense attorney file a motion to do total discovery and e-discovery on the plaintiff lawyer. It is to look for an improper motive.e-discovery includes all networking sites of the lawyer back to kindergarten.
Would you resist the publication of such discovery? If you would, shut up about Walmart.
Another Walmart lawsuit, reported in the Wall Street Journal, 11/20/2007:
“k says:
August 6, 2009 at 1:13 pm
Another Walmart lawsuit, reported in the Wall Street Journal, 11/20/2007: ”
omfg! lets all post court cases now! i’ll post exxon, you post walmart, and matt can post ones where thieves sue their victims.
the point of my post was that utter and total BS cases are common – so you post a snippet about a medical insurance practice?
as long as someone can sue a store for tripping on their own feet in the store docs will be sued by pts that don’t like the fact they sometimes they get sick and die.
Claus, go back on your medications.
Black: You upset about something?
Whitecoat, for insight into what a patient thinks, you might read back a bit in this blog:
http://creamysilver.blogspot.com/
The writer is a woman in her mid 30s who lives somewhere in the Midwest. She has fertility problems which have recently become especially acute, because her husband has developed leukemia. He’s taking chemotherapy and seems to be doing well at the moment, but it has suddenly become terribly clear to them that time for having a family does not stretch unbroken before them.
She had a procedure performed last summer that was related to the fertility issue. (If she told us all the details, I don’t remember them.) Somehow the incision has never healed. A portion of the wound continues periodically opening and oozing blood and fluid. Week before last, the reproductive endocrinologist who performed the procedure revised the wound. However, it wasn’t the RE himself who did the work. It was a resident who is in training with him. The resident’s bedside manner wasn’t particularly wonderful; Jen, who writes the blog, was a little unsettled by the fact that the resident didn’t introduce herself or ask Jen’s name. She also pulled the overhead light very low over Jen’s abdomen. When Jen told her the light felt hot, the resident ignored her. In the end, Jen came out with two burns on her skin from the light. The revision didn’t work very well, either; within 3 days, one of the stitches came out. When Jen went to the emergency DEPARTMENT to have it replaced, all the other stitches came out and had to be replaced.
Jen has discussed her unhappiness with the doctor’s office. She doesn’t really know what to do. If anyone is sympathetic to the doctor’s point of view, it’s Jen; her father is a doctor. She also REALLY depends on this RE; he has treated her for a long time, and at the moment he represents her future. (The area she lives in is not a big city and her choices for medical care are limited.) On the other hand, she came out of this revision worse than when she went in, she has burns that cause her additional discomfort, and she has had to pay for two visits to a doc-in-the-box and one visit to the emergency department over this.
Notice as you read how much of this is about wanting the doctor to recognize and take her problems seriously. She keeps coming back to how disturbed she was about the resident’s high-handedness and how badly she wants an apology.
I’ve known a number of people who have had medical injuries (including my father) but haven’t sued. I believe people are much more forgiving than doctors give them credit for. They just want to know that their concerns really matter to the doctor and the doctor truly feels bad.
You haven’t really told us much about the circumstances that led to this case. I’m sure your medical treatment was correct and thorough. But these women lost someone they dearly loved, lost him suddenly and without much warning. My suspicion is that someone somewhere along the line didn’t take the time to communicate well with them, to make them understand how seriously ill he was and how bad everyone felt at the outcome.
Most medical failures are patient self-inflicted. The family can’t face they were often the biggest cause. The rent seeking lawsuit loot enemy of clinical care profits from the scapegoating of doctors. When it comes to the benefits of torts to his profession, he grants himself nearly absolute immunity. The lawyer sues everyone else successfuly, No one gets to sue a lawyer with even the smallest chance of succeess.
I was always told more good doctors with bad bedside manner get sued than bad doctors with good bedside manner.
Daniel,
did you read Blink? i remember something about that.
there was a bit about volunteers listening to recordings of docs voices with actual words muted so they couldn’t be heard.
the listeners had a high success rate of determining how often the doc would be sued based on tone.
OH WAIT! there are two sides to ever story! that didn’t happen. they were listening to whales! let the courts decide if this actually happened!
Adam don’t get all bent out of shape because people disagree with you. And there are lots of studies showing that if you communicate well with patients they are less likely to make claims. That’s probably true in any context.
Matt: You are openly admitting many claims are based on anger at the doctor,on a need to know more, which are improper motives. The lawyer is an agent of the plaintiff, and must be held totally accountable for the same motive.
That is folk statistics showing medmal has no validity. The lawsuit reflects animus and scapegoating, and nothing else. Along with, finding out the truth, or preventing it from happening to others, all are improper motives.
Then, the jury cannot detect the truth by using their gut feelings. They can only detect which party is more likable. And the sociopath will always beat the smart, correct party at that game.
[redacted] There have to be some [attorneys] that don’t use manipulation to win cases.
I would like to hear how an honest attorney would handle this case for the plaintiff.
Why do you assume the plaintiffs attorney isn’t honest? But asking someone how they would try a case when they know so little of the facts or witnesses is an impossible question. It’s like asking how an honest doc would perform surgery on your heart based solely on telling him you have chest pains.
Ask Max. He would probably not have taken this case.
I would take only cases that are within the knowledge of the jury, or that have no scientific controversy. Examples include, wrong site surgery, medications given to wrong person. Most would never make it to court, and the fair minded doctor would have offered compensation even without a lawyer.
“and the fair minded doctor would have offered compensation even without a lawyer. ”
I wonder how often this happens.
I am not interested in opinions here – only numbers.
Do not bother posting unless you have a web site that has some numbers related to this.
I don’t blame doctors for not doing that, and I tell my clients not to take it personally. The insurance companies often advise otherwise. It’s also human nature not to offer direct compensation.
That said, numerous doctors compromise on future bills when the future procedures are due to their errors (I won’t said “malpractice,” that’s a loaded word) in the past. That’s a form of compensation.
I doubt you’d find public numbers of how often doctors offer compensation. The best you could do is try to ask a risk management group in a hospital and, well, they’re not like an open book.
I probably would not have taken it, certainly not if I couldn’t get a credible expert for trial. There is nothing I hate more than getting a great informal opinion from a doctor who then bails or has no idea what they’re talking about down the road. I’ve seen experts sued for pulling that crap.
It is worth noting, however, that there seems to have been a critical factual dispute in this case arising from the blood on the abdomen. That wasn’t just some fantasy of the plaintiff, it was apparently in the EMT record, too, for whatever reason, and I think WhiteCoat admits that, if that was true, it would be pretty damning.
As for “manipulation,” there’s a real question about where “advocacy” ends and “manipulation” begins. Nonetheless, I’ve never done the “GOTCHA!” tactics with yes/no questions before, not least because I doubt it would work, it would just get you nailed by the other side when they got up for questions and pointed out the trick.
That brings to mind a funny story about David Boies, one of the best litigators / trial lawyers in America today. Back in the Microsoft case, one hostile witness got flustered by the questions Boies would ask, and started to lose his composure and start blubbering.
So Boies said: “would it help if I raised my hand every time I asked a tough question so you could think about it before answering?”
The witness said yes.
So Boies did.
Great lawyers don’t use tricks.
Max,
your insight is interesting.
I didn’t reply to Adam’s question earlier b/c I have no statistics, but if he would find my experience as interesting as Max’s insight, I can tell you that many cosmetic surgeons perform revisions free of charge, not necessarily due to “errors,” but just because the esthetic result did not meet the patient’s expectations.
Two of my clients, a family practitioner and a dermatologist, called their insurors and requested that their policy limits be paid immediately upon learning of the consequences of what they themselves felt to be their substandard treatment. This is rare. Much more common are the doctors who ask that their cases, though defensible, be settled b/c they are not entirely satisfied with the quality of their care. I have represented dozens of these; very typical is a current client, for whom I obtained two supportive expert reviews. He told me, “It’s true that my care met the minimum standards for [my specialty], but I try to practice better medicine than the minimally acceptable. I didn’t meet my own standards in this case, the patient was injured as a result, and I’d like her to get compensation.” So that’s what’s happening.
A. J. Campbell,
I suppose no one will ever see the numbers. Risk departments for hospitals will see theirs, and insurance companies will see some slightly different numbers.
Hard to get a good picture of a problem when you cannot see actual numbers.
Imagine someone trying to tell doctors about a well known disease, and offering a fix – but not offer any numbers. They’d FREAK! For good reason.
“Ok. One question Matt. I go for a surgery and the doctor makes an error, and I suffer for that. I sue because I believe I am entitled to some settlement. Now on the other hand, someone else was wrongfully accused of whatever. The case was close but he lost because the lawyer did not present the case well. Can that person sue the lawyer?”
Short answer is yes, a person can sue a lawyer. No doubt about it. If your question is can they win, it’s hard to say. With any professional malpractice, you’ll have to establish the standard of care was breached. Then you’ll have to establish that but for that mistake, you would have prevailed.
I see. Thanks.
Matt’s answer is ridiculous. You have practically no chance.
You have to get an expert to testify that your lawyer deviated from professional standards, that the deviation caused the loss, and that nothing intervened to cause it as well. OK you have done all that, which is already nearly impossible.
Next, you have to prove your original case. You have to try your case over again, and win it this time around. That means a whole trial in a trial, with medical experts and the works. OK. This is impossible but you get it done.
Now, you have to prove you could have collected from the original defendant. You have to get the original defendant’s financial records, and show how you reach them.
Good luck with that. So the lawyer is really immune from any accountability. The system is rigged airtight in the lawyer’s favor.
That leaves only self help. You are better off just going after the lawyer with a baseball bat, and break a bone until it agrees to pay.
I agree that it would likely be difficult, if not impossible, to find valid stats on how many doctors would settle legitimate cases without the need for a lawyer to file suit.
Cases settle for many reasons besides clear evidence of malpractice. The doctor may feel his care was proper, but the potential damages far exceed his insurance limits; he doesn’t want to lose two weeks or more from his practice, listening to his treatment being derided as butchery and charlatanism; the insurance company settles w/o his consent because the demand drops below the cost of defense, or because they doubt his ability to convince a jury. Some malpractice policies have a consent-to-settle clause, but when they don’t, the doctor’s desire to compensate the plaintiff will not be the deciding factor, and may not even be recorded in the claim file. Thus I doubt even a risk management department or insurance company could really tell you this.
Come on already where are parts 20++